Yard & Garden Line News Volume 8 Number 12                                                               August 1, 2006

Features this issue: Nuisance Trees: Encroaching Branches and Tree Roots Damage Done to Trees: Consequences and Compensation Yellowjacket Review and Update Picnic Beetles Elm Sawflies Garden Calendar Editorial Notes

Nuisance Trees: Encroaching Branches and Tree Roots
Lorrie Stromme, attorney and Hennepin Co. Master Gardener

Trees usually enhance our landscapes. Photo credit: Dave Hansen

Tensions mount when a boundary tree becomes a nuisance to a neighbor on one side of the boundary and not the other. The best advice is to try to work out the problem in a neighborly way, instead of taking your case to court. This fact sheet answers some of the most common legal questions about trees that have become a nuisance, based on the law in Minnesota. Watch for "Tips" as you read.

What is a nuisance tree?
A Minnesota statute defines a nuisance as follows: "Anything which is … an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance." In the context of neighbors and their trees, the branches from your neighbor's tree that rub against your roof or the roots that push up your sidewalk are considered a nuisance. What about your neighbor's tree that leans far into your yard and prevents your use of a corner of your yard? If that tree interferes with the free use and enjoyment of your own property, then the tree has become a nuisance.

What is a boundary tree?
Courts sometimes use a more complex definition, but for most purposes, a boundary tree is one that is either planted on the boundary line between two lots or a tree whose branches, trunk, or roots have crossed a boundary.

Who owns a boundary tree?
Generally, the location of the trunk determines who owns the tree. A tree trunk that stands solely in your yard is your tree. As the tree owner, you can decide to coddle your tree or cut it down, even if your neighbor protest that removing your tree will expose his once-shaded patio to the blazing sun. Tip: If you and your neighbor are co-owners of a true boundary-line tree, then you cannot cut down the tree without your neighbor's consent, and vice-versa. You and your neighbor share the tree-care expenses and responsibilities equally.

How do I determine where the boundary line is?
A survey is the best way to determine the boundary lines of a lot. Look for surveyor stakes or boundary markers. A plat map and legal descriptions help, too. Often neighbors know where the boundary is between their lots. Tip: Talk to your neighbor, if you have any doubt about the location of the boundary line.

What can I do if the roots or branches from my neighbor's tree encroach into my yard?
If the roots or branches have encroached into your yard and become a nuisance, you have the right to fix or "abate" the nuisance, but there are limits. Here are some guidelines:

Trim overhanging branches up to the boundary line - at your own expense. This right is called "self-help." [See "What is self-help?" below]

Trim, but don't harm the health of the tree or destroy it. For example, cutting off too much of the canopy could jeopardize the tree's capacity to photosynthesize. Cutting too much of the root system could cause the tree to become unstable and topple over. And pruning an oak between April and September could make the tree vulnerable to oak wilt, a fatal disease. It doesn't matter that the tree may look funny after trimming it. The courts look at whether or not you are harming the tree's health. If you don't know what may harm a tree, consult a tree expert before cutting.

To find a tree expert or 'arborist," look in the Yellow Pages under 'tree service," look for the arborist's membership in professional organizations, such as the Minnesota Society of Arboriculture (MSA), the International Society of Arboriculture (ISA), or the National Arborist Association (NAA) .

Don't trespass onto your neighbor's property to trim a tree or shrub. And technically, that means don't even lean over the property line to make the pruning cut, unless you have the neighbor's consent.

Don't cut down a tree whose trunk is on the boundary line, unless you have the express consent of the owner on the other side of the boundary line.

Tip: Chat before you chop. Even though you are not legally obligated to do so, talk to your neighbor before you do major trimming on your neighbor's tree. It's the neighborly thing to do.

What is self-help?
Property owners in every state have the right to trim the branches or roots of a neighbor's tree that encroach onto their property, up to the property line, at their own expense. This right is called "self-help." Self-help is an alterative to going to court. The rationale is that self-help prevents the wasteful use of the court system to resolve comparatively minor disputes. It's a trade-off: you have the right to cut and remove the encroaching branches or roots of your neighbor's tree, right away, at your own expense (i.e., use self-help), instead of having to hire a lawyer, start a lawsuit, and wait for the courts to sort it out. Using self-help saves you time and money, and keeps the courts from settling disputes between neighbors. In Minnesota, you have the option of using self-help OR going to court, when using self-help is not practical or reasonable. In most other states, self-help is the exclusive remedy.

What are the consequences of trespassing to cut down my neighbor's tree?
Cutting down a tree on another person's property without permission is trespass and carried a stiff penalty. In Minnesota, whoever intentionally cuts down a tree without the owner's permission can be assessed three times ("treble") the amount of monetary loss suffered by the tree owner. Tip: Don't engage in stealth tree-cutting when your neighbor has gone on vacation. You're setting yourself up to pay three times your neighbor's loss.

Russian Olive-a messy tree. Photo credit: WI DNR

What can I do about leaves, twigs, sap, fruit, and other debris from my neighbor's tree?
Leaves, twigs, sap, acorns, etc., are naturally occurring tree debris and do not generally constitute a nuisance. There are no court cases in Minnesota that directly deal with this issue. However, courts in other states have recognized that tree owners are liable for "sensible damage" caused by their trees, such as a damaged roof, but not mere debris from a healthy tree. Going to court to have a neighbor ordered to pick up fallen debris is not practical or economical.

Who owns the fruit on the branches of my neighbor's tree that hang into my yard?
The rule of thumb is that the fruit on the overhanging branches belongs to the tree owner. Picking the fruit may not be so simple. Ownership of the fruit does not give your neighbor any right to trespass onto your property to pick the fruit. The law in Minnesota on this subject is not clear cut. Courts would probably weigh your right to keep trespassers out of your yard against the owner's right to harvest the fruit. The balance may tip in favor of your neighbor, if she owns an orchard and depends on the fruit for her livelihood. The law is also unclear on the issue of fallen fruit. Once it has fallen, the fruit's value diminishes. It has become, for all practical purposes, "tree debris." You should be able to use or dispose of the fruit, if your neighbor says nothing about wanting it.

Help! My neighbor cut down her tree … and took the shade in my back yard with it. What recourse do I have?
None. If the tree trunk was in your neighbor's yard, it's her tree. She has the right to cut it down, even for the heck of it, and even it doing so exposes your prize-winning hosta garden to all-day sun.

What is the best way to resolve disputes about trees between neighbors?
The best approach is to try to work out the dispute with your neighbor.

Where should I go to seek legal help, if needed or if the neighborly approach doesn't work?
Look in the Yellow Pages under "Attorneys/Real Estate or Real Property Law." Also, look in the Gray Pages of the phone directory for Lawyer Referral and Information Service. This service's attorneys often provide a half-hour free consultation to people referred to them.

Damage Done to Trees: Consequences and Compensation
Lorrie Stromme, attorney and Hennepin Co. Master Gardener

Cash Photo credit: MS clipart

My neighbor cut down trees on my property. What are my legal rights?
Cutting down a tree on another's property without permission is trespass and carries a stiff penalty. A Minnesota statute provides that whoever intentionally cuts down a tree without the tree owner's permission can be assessed three times ("treble") the amount of monetary loss suffered by the tree owner. If the tree damage is unintentional, then the tree owner's loss would not be tripled. In one Minnesota court case, a driver had a heart attack while at the wheel and crashed into a grove of spruce trees. The driver was responsible for the cost of the damaged trees, but he was not ordered to pay three times the cost, because the damage was caused accidentally.

How will I be compensated for damaged or improperly removed trees?
Try the direct approach first. Have a face-to-face discussion with your neighbor, the wrongdoer, and give him an opportunity to make an offer to compensate you for your loss. The reason to try to work it out is that when you have to consult experts is to avoid having to pay for lawyers, appraisers, and related legal costs. It may cost you more to prove the value of your trees than to recover your loss.

If you simply cannot come to terms with your neighbor, you will likely have to go to court. You can sue in Small Claims Court (called "Conciliation Court"), if your loss is $7,500 or less. You should consult experts to establish the value of your tree or the decrease in your property value.

How do I find experts?
Start by calling a tree nursery or a tree-moving company (consult business directories). They can give you a value about the trees that they sell. If the tree diameter is greater than 3 inches, the nursery retailers will likely refer you to a tree appraiser. Professionals that appraise tree values or landscape damage usually charge $75 to $125 per hour for consultation time, driving time, and report-writing time.

How is the dollar value of a tree determined?
Tree-and landscape-appraisers use formulas to determine the dollar value of a tree. The factors that appraisers consider include the tree species, its size, its condition (health), its location/site, the tree's functional and aesthetic attributes, and its placement in the landscape (e.g., a single, mature tree in a yard; a tree in a grove; or a tree under a power line).

A construction contractor damaged or removed trees on my property. What are my legal rights?
The leading Minnesota court case on this subject involves a church whose road contractor piled soil over the roots of some trees on church property. The trees' roots were smothered, and the trees died. The church sued the contractor. The trees in this case were ornamental, provided shade, and acted as a screen and sound barrier to nearby highway traffic. The church was compensated for the "reasonable and practical replacement cost" of the destroyed trees. An expert calculated the value, which included the retail cost of the replacement trees, planting costs, and tax. The replacement planting of trees would, over time, approximate the previous condition of the church's site. If the trees had been small, ill-formed, and not particularly desirable as ornamental trees, their value would not be as great, and the way to determine the value of the loss would be the difference in the value of the real estate before and after the damage was done.

Am I entitled to punitive damages?
No. You cannot collect both treble damages and punitive damages for trespass to your trees. The purpose of punitive damages is to punish and deter conduct that is malicious or willfully indifferent to the rights of others. Treble damages are the equivalent of punitive damages.

Are there any criminal penalties?
A person who intentionally cuts down another's tree without permission or damages property can be charged with criminal trespass or criminal damage to property. A city attorney or county attorney determines if criminal charges are warranted, and if so, prosecutes the case. The wrongdoer, if convicted, faces penalties ranging from paying a fine to imprisonment, depending on the value of the property destroyed.

Yellowjacket Review and Update
Jeffrey Hahn, Assist. Extension Entomologist

Yellowjackets: ground nesting, aerial and foundation. Photos: Jeff Hahn

We are finding above average populations of yellowjackets this year. This is because of the warm, dry weather we experienced during spring. This allowed overwintering queens to become active more quickly and begin constructing nests and producing workers sooner than normal.

Now we are experiencing the fruits of their labor. Yellowjacket nests are becoming large enough and the workers abundant enough that their presence is conspicuous in many cases. If yellowjacket nests are anywhere near where we are active, we risk being stung by them.

Yellowjackets construct a paper mache type nest made from chewed up wood. They make paper-like combs comprised of many cells. These combs can be arranged on top of each other in a series of tiers. The combs are covered by a papery envelope. Nests are small at the beginning, about the size of a softball but can get to be the size of a basketball or larger.

You can find these nests in a variety of different sites. They can be in exposed areas, e.g. hanging under eaves or the limbs of trees or shrubs. Yellowjackets are also common in subterranean sites, e.g. in old rodent burrows. You don't see the nest but see the entrance where the workers fly in and out. They may also take advantage of cavities in buildings, such as wall voids or the spaces in cinder blocks. There you only see the workers fly back and forth from cracks or spaces that lead to the nest.

It is best to treat a yellowjacket nest as soon as you notice it. It will only continue to grow until late summer. Treatment of a yellowjacket nest depends on where it is located. If it is high in a tree or in a site where there is no risk of stings, then leave it alone. Its not hurting anyone and freezing temperatures will eventually kill the occupants.

However, if the nest is located where there is human activity, you should control it to prevent stings. When the nest is out in the open, you can generally take care of it yourself. There are many ‘wasp and hornet spray' products available for you to use. They typically contain active ingredients such as resmethrin, tetramethrin, permethrin, or prallethrin.

Your best bet is to wait until evening to spray the nest. Yellowjackets are not very active when it is dark. Spray the insecticide directly into nest entrance, the opening located on the bottom. Check it the next day to see how successful you were. If you there is still some activity, treat it again. If you prefer, you can always hire a professional pest control service to treat any yellowjacket nests you do not want to deal with.

When you encounter yellowjackets nesting underground, this is more challenging but it is a situation that you still can take care of yourself. Treat it at night, just like you would for nests that are out in the open. Instead of using an aerosol can of wasp spray, you are going to want to use an insecticide that is labeled for insects in grass, e.g. Ortho® Bug-B-Gon® MAX® Insect Killer (active ingredient bifenthrin). Dusts work better than liquids but it is harder to find dusts that are labeled for treating underground yellowjacket nests. Once you are sure the yellowjackets are all dead, then fill in the burrow with dirt.

The most challenging type of yellowjacket nest to control are the ones that are located within structures, e.g. in wall voids or in attics. You see the yellowjackets moving back and forth through a crack or space but you don't know exactly where the nest is located. The best method of treatment is to apply a dust into the cavity. Because this type of nest is difficult for homeowners to eradicate, it is usually best to contact a professional pest control service to treat it for you.

There a couple things to be careful of when it comes to hidden nests. Don't spray an aerosol insecticide into the opening in the hopes of eliminating the nest. The odds are you won't kill many yellowjacket and you could force them to enter the inside of the home. Also don't seal the opening unless you are sure all of the yellowjackets are dead. If you do, there is a good chance they will find another way out which is often into the inside of your home.

Picnic Beetles
Jeffrey Hahn, Assist. Extension Entomologist

Picnic beetle. Photo credit: Jeff Hahn

Picnic beetles are a type of sap beetle (family Nitidulidae). They are 1/4 inch long, oval shaped, and black with four orange spots. They are attracted to all kinds of fermenting smells including overripe and rotting fruits and garbage. They have even been know to invade outdoor activities where fresh fruit, beer or wine are served.

They overwinter as adults and are active from spring through summer. We most commonly see them in our gardens during mid to late summer and fall, especially on corn, berries, tomatoes, and melons. They typically do not attack healthy, sound fruits and vegetables, although once they are drawn into a garden they can attack ripening fruits and vegetables.

In one recent example, a gardener had a problem with blossom end rot on her tomatoes (a physiological condition that can eventually cause the bottom of a tomato to decay). She saw the picnic beetles and assumed they were boring into the tomatoes and causing this problem. In fact they were attracted to the rotting areas of the tomatoes and infested those areas.

The best way to keep picnic beetles away is to avoid attracting them into the area from the beginning. Practice good sanitation. Pick fruits and vegetables as they ripen. Remove any damaged, overripe or rotting produce on a regular basis. Once picnic beetles are drawn to your garden, they are difficult to get rid of.

Garden insecticides, such as permethrin, esfenvalerate, and carbaryl are labeled for most garden crops. While you can kill beetles that are present, insecticides do not provide long lasting control. Once you spray your garden plants, you can not pick fruits or vegetable right away as you need to observe the time interval between pesticide application and when you are allowed to harvest them. This number will vary from product to product. But regardless of how long you need to wait, new picnic beetles usually have returned to your garden by the time you can pick your produce making it difficult to get ahead of the game. In the long run, it is better to observe good sanitation practices initially to keep picnic beetles out of your garden than to depend on insecticides later.

Elm Sawflies
Jeffrey Hahn, Assist. Extension Entomologist

Elm sawflies on willow. Photo credit: Sharon Leopold

Large size sawflies have been recently reported on willow. These sawflies have a greenish or whitish body with bumpy skin, orangish brown head, and a black and blue stripe running down its back. As a young larva, this stripe does not stretch all the way to the head or the end of the abdomen. Elm sawflies are the largest sawflies in Minnesota, measuring about two inches when fully grown.

Elm sawflies overwinter as prepupae on the ground. They finish their development in the spring and emerge as adults sometime during June. Adults, stout-bodied wasps, a little over one inch long and are mostly a dark violet color. The first segment on the abdomen is yellow while the last two-thirds of the abdomen is reddish-brown or violet color.

The females lay eggs primarily on elm and willow, although they have been known to feed on other trees including basswood, maple, birch, and poplar. The larvae feed until late July or August then drop to the ground to form a cocoon in the leaf litter or just below the soil surface. Although elm sawflies were reported from the Rock county and Nobles county area, they are found in all parts of Minnesota. They are a common sawfly found throughout the U.S. and southern Canada.

Fortunately, elm sawflies are typically not important defoliators of landscape trees although they can be abundant in a local area. In most cases, it isn't important to manage them. If you do plan to treat them, it is best done when they are about one inch long or less to minimize damage to trees. Most, if not all of them, are probably in the process of finishing their feeding making it too late to manage this year. If you are concerned about them next year, monitor your trees starting in June and treat if necessary. However, if they were a problem this year, you may find that they are not an issue next season.

Get the low down on this month's insect pests at Insects
http://www.extension.umn.edu/projects/yardandgarden/EntWeb/Ent.htm

Contributors: Nancy Rose Patrick Weicherding Bob Mugaas

Deadheading petunia. Photo credit: Beth Jarvis

Fruit and flowers:
Deadhead annuals as the flowers fade, taking care to pinch behind the faded bloom to remove the ovary.

Veggie flowers might have aborted in the heat of the last few weeks. Maximum temperatures for tomatoes, pepper and squash are discussed in the July 15, 2002 Y& & GL News. at http://www.extension.umn.edu/yardandgarden/YGLNews/YGLN-July1502.html#flowers.

Fall vegetable crops should be planted now--carrots, spinach, lettuce, snow peas all need to go in by mid-August. Seed lettuce into containers and keep the cool until until the seeds germinate

Harvest basil now. You can make pesto and capture the fresh basil flavor for months.

Harvest onions and garlic as foliage starts to die back. Don't forget the Garlic Fest on Sat. Aug. 12 in Howard Lake. http://www.extension.umn.edu/yardandgarden/YGLNews/YGLNews-July0106.html#garlic

Blossom end rot causes water-soaked to dark patches on the bottom/blossom end of tomatoes and peppers. It's prompted by uneven watering, among other things. Read about it at http://www.extension.umn.edu/yardandgarden/YGLNews/YGLN-Aug1501.html#BER. Cut of the discolored part and eat the rest. Even watering should eliminate the problem.

If temperatures return to normal, you might do the third spray for apple maggot, if you missed it earlier.

Water your fall-bearing raspberries now. They're blooming.

Water and fertilize container plantings. Straggly annuals, such as petunias can be cut back to shape.

Start staking asters and sedum, now called Hylotelephium. Wire peony/tomato cages can be used on smaller plants.

Trees and shrubs:
Even though we're beyond the high-susceptibility period for disease transmission, avoid pruning oaks and elms until October.

Water, water, water. Mulch, mulch, mulch.

Look for signs of drought stress on trees-yellowing of leaves, defoliation, wilting. Be sure to keep all woody plants well watered. Even well-established trees may be displaying drought stress.

Newly planted materials need several years to replace root systems lost in transplanting, especially balled and burlapped or tree spaded plants. Because transplants retain most if not all of their foliage, they will suffer transpiration loss that their roots system can't replace. So even if a new tree is getting loads of water, it might be lacking the "plumbing" to take it up, so you'll see drought stress.

Even thought evergreens such as arborvitae, junipers and yews could be pruned now, wait until the weather cools.

Red spider mites were once associated with hot weather, but research has found they don't need hot weather to flourish. Webbing on evergreens and yellowing, stippled foliage are signs of possible spider mite infestation.

Roses, nicotiana, rudbeckia, Verbena bonariensis, Russian sage. Photo credit: Beth Jarvis

Lawn Care:
At UMORE Park, Bob has noted that the corn gluten trial plots perked up "remarkably" after a couple of inches of rain recently. These plots get no additional watering and have had to survive on rainfall only 2001. The drought-tolerant cultivars have survived.

Indeed, older lawns may be more resilient as the drought-tolerant cultivars are about all that's left. Which is why letting lawns go dormant is not generally applicable these days as there are variations in cultivars, sites, and exposures.

It is possible to gradually harden off turf by gradually reducing water. Do deficit irrigation. Apply 1/2" to 3/4" at 7 to 10 day intervals. The lawn won't be lush green and may look less splendid but there will be more green in your wallet. For actively growing lawns, apply 3/4" to 1", depending on your soil type.

Once upon a time, Extension recommended "watering deeply and well" -one inch of water per week, all at once. That was modified to split watering into two applications to prevent fertilizer from getting flushed out of the root zone. Split watering still holds for very sandy soils or heavy clays where water ponds. If your yard is not of either extreme, a single watering of 1" is fine.

If water percolates at a reasonable rate, deeper irrigation done less frequently will suffice. Compaction will affect percolation. (To test for soil drainage, dig a hole 18 inches deep, fill it with water, and let it stand overnight. If the water has not drained by morning, there is a drainage problem. (Do not test the drainage in this manner after heavy rainfall or before the ground has thawed in the spring.))

If you use a sprinkler that puts out larger droplets, you're probably get more water to the plant site site with less loss to the wind. A fine mist can literally blow away Smaller droplet size sprinklers can be used at quieter times of day when there's less wind.

Tuna cans, cups, etc., can be spread in sprinkler's path to monitor how much water is applied in an hour.

Hold off on herbicides applications now. Even 80°F is too warm to use most herbicides. Mow the grass high at 2.5 to 3" at least. Stay off very dry lawns.

Editorial Notes

Thunbergia vine. Photo: Beth Jarvis

Bob Mugaas will be writing about drought lawn care in an upcoming issue. I am hoping Dave Hanson will find time to write about the physiological drawbacks of growing evergreens in shade vis a vis incidence of winter injury, among other things. I'm hoping to catch up with some more of the plant breeders at the Horticulture Research Center and report back to you.

Please feel free to cut and paste any of the articles for use in your own newsletters. All we ask is that you give our authors credit.

Back issues Yard & Garden Line News are on the Yard & Garden Line home page at www.extension.umn.edu/yardandgarden/.

Deb Brown answers gardening questions on Minnesota Public Radio's (MPR) "Midmorning" program on the first Friday of every month at 10 a.m. The program is broadcast on KNOW 91.1 FM, and available state-wide on the MPR news radio stations. (Scroll down for map.)

For plant and insect questions, visit http://www.extension.umn.edu/askmg. Thousands of questions have been answered, so try the search option in the black bar at the top left of the board for the fastest answer.

If you would like to receive an e-mail reminder when the next issue of the Yard & Garden Line News is posted to the web, just send an e-mail to: listserv@lists.umn.edu (note: the second E in listserve is omitted), leave the subject line blank, then in the body of the message, type: sub yglnewslist or to unsubscribe, enter: unsub yglnewslist

Happy gardening!

Beth Jarvis
Yard & Garden Line Project Coordinator


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